Brussels, 17/11/2011 (Agence Europe) - When action is brought in a member state court against a national of another member state whose domicile is unknown by that court, then the courts of the place where the consumer had his/her last known domicile may have jurisdiction to deal with proceedings against him/her. The fact that it is not possible to identify the current domicile of the defendant must not deprive the applicant of the right to bring proceedings.
Such was the response given by the EU Court of Justice on Thursday 17 December in its ruling C-327-10, to the Cheb District Court (Czech Republic), which had asked the CJEU for its interpretation of the regulation on jurisdiction in civil and commercial matters (No44/2001). In the case in question, a Czech bank took action before the courts requesting that a German national, who had concluded a mortgage loan contract in the Czech Republic, pay a certain sum together with the interest incurred for payment in arrears. The loan contract expressly provided for the local court of the bank, determined according to its registered office, to have general jurisdiction in respect of any disputes, and that the client should inform the bank upon changing domicile. However, at the time of recovering the amount due, the court had noted that the person no longer lived at the address given and could not give a domicile in the Czech Republic. The court therefore asked the Court of the EU whether a provision of the member state's national law under which proceedings may be brought against persons whose domicile is unknown was in line with the European regulation.
First of all, the Court indicates that the regulation does not expressly define jurisdiction in a case where the domicile of the defendant is unknown but that, still according to the regulation, proceedings against a consumer must be brought by the other party to the contract in the courts of the member state in which the consumer is domiciled. If, however, the national court is unable to identify the place where the consumer is domiciled within the member state of that court, it must then examine whether he/she is domiciled in another EU member state. If the national court is unable to identify the place of domicile of the consumer in the territory of the EU, and if it has no firm evidence to support the conclusion that the consumer is in fact domiciled outside the EU, the rule according to which, in the event of litigation, jurisdiction is vested in the courts of the member state in which the consumer is domiciled must be understood as referring not only to the current domicile but to the last known domicile. This enables a situation to be avoided in which the fact that it is not possible to identify the current domicile of the defendant precludes determination of the court having jurisdiction. Such a solution ensures a fair balance between the rights of the applicant and those of the defendant. (FG/transl.jl)